November 18, 2005

After guiding my CivPro class through the mysteries of transfer of venue this morning at the Law School, I transfer myself to another venue, the Café Monmartre, for a little debate about the Alito nomination for a group of lawyers from the American Constitution Society (the liberal answer to the Federalist Society). I'm there to convince them that they ought to support the appointment of Samuel Alito to the Supreme Court. It's impossible, of course, but I do have some arguments: we need strong, well-established jurists on the Court, not stealth nominees and compromises; the wheel will turn again and allow a Democratic President to appoint a brilliant and distinctive liberal jurist to the Court; liberals should not want the institution of the Court to be degraded by political fights in which ordinary people are encouraged to believe that there is no creditable rule of law and judges are nothing but democracy-usurping activists.

The place looks awfully bohemian for a lawyerly event, but this is Madison, my friends:

It's very hard to get an unblurred shot of the place:

But in some ways a blur is appropriate -- symbolic, perhaps of the blurring of the line between law and policy, which I recommend sharpening ....

... and my opponent in the debate prefers to keep well blended. We must recognize that the Justices are "making public policy" for the country, he says, as I keep saying that progressives have a stake in preserving the rule of law and the legitimacy of the courts. They need an articulable legal theory that is as powerful as the conservative's originalism, I say. My opponent fairly seethes: "The concepts such as original intent of the framers are pernicious in my opinion." A member of the audience rejects my assertion that originalism is comprehensible to ordinary Americans and that liberals need a theory that is equally appealing in the political debate, where, now, their favorite judges are too easily painted as "activists" who are "legislating from the bench." Who believes the conservative's argument? -- he asks and says that everyone must know that what the courts do is politics by another name. I said, "If I had a videotape of you saying that and I put it up on my website, do you have any idea what the reaction would be?"

So, did he have any idea what the reaction would be? I suspect not. This is the tone-deafness that creates minority parties.

I have to admit, even as a life-long Republican, that I am very disturbed by the self-destructive, anti-democracy stance of the Democratic Party. A one-party state is a very bad idea, and some of the things being done by the GOP Congress are good proof of that. But a one party state seems to be the only option when the opposition party rejects democracy.

I think the response to the hypothetical video would be 'that's Madison for you' and not much else.

The value placed on obtaining a degree seems to be in total opposition to the values and ideas that come from the institutions that hand out those degrees (the degrees are still considered precious, the other stuff, dross).

Strange times.

The current slew of Slate articles on Higher Education seem to be dancing around this idea. They don't want to come out and say that the intellectual output of academia has little influence outside of academia, but the sum of their articles suggest just that.

First, had John Skilton said what he said at a Federalist Society meeting, he would have been booed. So I think the gathering was quite open minded and listened to both sides of the debate.

Second, the problem is probably not Judge Alito. However, he will be taking the swing vote spot. There are no conservative judges that will retire for many many years. Thus, we are not going to be listening to so much the Roberts/Alito voice, but the Scalia/Thomas voice.

I don't think Scalia and Thomas are very principled. Thus, the practical ramifications will be that a lot of good precedent will go down over the next decade.

This Country has been sold out with the National Debt skyrocketing. We face some tough times ahead. I don't think the Court will be helping much to improve our overall condition.

But again, this is not Alito's fault. Bush has the right to appoint him.

Thanks for taking the argument out into "the field." I'm stuck here talking to senators, many of whom (unlike at least half of the lawyers in Madison) don't have law degrees. They think only in political terms. It's kind of depressing.

Then again, I get to go home for the weekend and they all have to keep bickering about the war.

Of course, Saul, the swing vote is all a matter of perspective. I would suggest that it is Justice Kennedy who is taking the swing seat now, and that leaves the Constitution in about the same level of mortal peril into which Justice O'Connor successfully placed it.

Yes, Kennedy is in the center spot. I meant that Alito is taking the spot of the former center.

I hope Ann is correct in her optimism. I grew up in D.C., and was a little kid during the 60s. I moved to Madison in the early 80s, and although not too politically active, would have been classified as a Madison lefty.

Having started law school during the Bork hearings, I quickly appreciated the flaws in the left attacks. However, I think real conservatives would agree that the Bush administration is not purely conservative, and Congress leaves much to be desired.

So, for me, it is difficult to imagine a reasoned right wing Supreme Court being able to do much to contain an out of control Congress and Executive.

We've had about 10 wake-up calls in the last decade, and we continue to hit the snooze alarm.

Saul: I don't think it's fair to just say that Federalist Society folk would be rude. People weren't rude to me. They listened. But afterwards, as I was standing up in front, waiting to get my coat, many people filed past me without stopping to say hello or thanks for coming or nice talk. It wasn't in-your-face rude, but I sensed the antagonism. Skilton (referred to as "my opponent" in the post) sounded angry and belligerent, even though he was speaking to a friendly audience. There is just a lot of insular stewing among liberals. It's not going to help get more politically popular. Oh, and by the way, the audience clapped after Skilton's initial presentation, but they did not clap after mine!

Saul, have you ever been to a Fed Society conference or debate? I'm guessing not. I've been to a number and the only person I remember getting jeered was a loco audience member self described as the founder of the fed society chapter of "the first internet law school" :)

Just like I'm sure you remember from your school days in Madison, it's lefties like yourself who tend to hiss and spit at those whose political expressions don't match up perfectly. Shouting down speakers and throwing pies...

Maybe I am wrong about the reaction John would have gotten at a Federalist Society meeting, but maybe not.

Anne, I was about to start clapping, as others were, but I think people hestitated for a second (maybe the moderator got to the mike or something), so I don't think the lack of clapping for you was a negative sign.

People did clap for John because he did rally the troops and his practical argument about what makes a good judge does make sense. And his comments about Posner are true. Like him or not, Posner creates the law, and then cites to himself. Like Kerouac was accused as being a typist, Posner tends to be a word processor.

And Shady Character, I am not a left winger, nor a right winger, nor a centrist. I am acutely aware of the merits of a conservative viewpoint. I am also acutely aware that what many people call conservatism is simply a mask for socialism for the wealthy. On the other hand, I have problems with socialism on other issues (as it is abused), though I do think this country can afford to provide health care, in some way or another, to everyone. As it is, the insured fund the unisured, and so the costs simply are distributed in a poor fashion.

Saul: As for the clapping, I totally saw that a few people were about to clap and then no one was going to clap first and then the people who had their hands in the I'll-clap-if-anyone-else-claps position waited a little while and put their hands down. Believe me. I was in a position to see it. I wish I had that on videotape. By the way: do you think Skilton dropped enough names?

I'm not sure about clapping sequence. Again, naturally I was about to clap, as were others around me, but for whatever reason there was some hesitation, and I guess I didn't want to be the sole clapper like a scene out a bad hollywood movie.

I don't think John was dropping names for the sake of dropping names. John does know everyone, and in the times I have spoken with him, I never have gotten that impression (especially since I have the habit of being a name dropper (got it from my mom)).

Well, it's pretty obvious to me what the hesitation was. I gave a good talk and deserved applause, but the individuals who were about to do the normal thing and applaud wanted to know that the group would approve of their applauding. Groups train each other. I saw it in action.

Nearly off the subject (but you did mention change of venue), you should have your class read an order denying defendant's motion to transfer from Galveston to Houston (S.D. Tex) written by Judge Sam Kent. It's a classic! I don't have the cite, but it's definitely in the F.Supp. somewhere.

On the subject, the anger and hostility of your audience should nto have been surprising. The far left side of the aisle has been losing at the ballot box for more than 30 years, and they consider the courts to be their last grasp on political power, the only was "What's the Matter With Kansas" can't happen to the whole country.

Professor Althouse: I was in the audience today and thought many of your points were excellent (and much more thoughtful than those of your opponent). For what it's worth, I was sitting next to a law student who hasn't yet taken any of your classes (I myself am a former student of yours), and she agreed. Of course, neither of us are members proper of ACS--I actually just came to hear the debate--so "for what it's worth" might not be too much with respect to this particular line of discussion.

As to the question of applause, I didn't notice anyone applauding anything other than the intros and the good-byes (not to suggest they didn't, just that I didn't notice); I assure you that I didn't applaud Mr. Skilton, and neither (I don't think) did anyone at my table. And, it should be pointed out (in fairness to the fair), your initial presentation went first, so those who would have cheered you had no reason at that time to know anyone WOULD be applauding anything. Personally, I'm just not much of a clapper.

I do want to apologize, however, for being one of those who simply "filed past" the speakers at the end. Not being big on post-event "meet-and-greets" (which, taken together with my aversion to clapping, I fear will cast me as some sort of deviant), allow me now to thank you for your talk.

In retrospect, I think one reason that you may have sensed antagonism was because your remarks--fundamentally non-partisan, apolitical, even (dare I say) anti-political--simply aren't the type to stir up a lot of visceral responses among partisans (of either stripe). Those among us who are not highly partisan tend to respond to like-minded thinking more with serious thought than with reflexive action.

Maybe it is just me but if I listen to a talk that I appreciate, I will clap for the speaker. That is just good common sense. Applaud for a good speech, don't applaud for a bad one. That you have to wait to see if anyone else will agree with you just means that you are sucking up to the others, not thinking for yourself.

Saul: I don't think it's fair to just say that Federalist Society folk would be rude. People weren't rude to me. They listened. But afterwards, as I was standing up in front, waiting to get my coat, many people filed past me without stopping to say hello or thanks for coming or nice talk. It wasn't in-your-face rude, but I sensed the antagonism. Skilton (referred to as "my opponent" in the post) sounded angry and belligerent, even though he was speaking to a friendly audience. There is just a lot of insular stewing among liberals. It's not going to help get more politically popular. Oh, and by the way, the audience clapped after Skilton's initial presentation, but they did not clap after mine!

Ann,

I've read many posts of yours these past 5 months on your blog, but few remarks of yours have affected me as much as this paragraph reply above.

If just ONE, just one blog-reader of yours here had been there with you, we would've clapped after your presentation like nobody's business.

I have to admit, even as a life-long Republican, that I am very disturbed by the self-destructive, anti-democracy stance of the Democratic Party. A one-party state is a very bad idea, and some of the things being done by the GOP Congress are good proof of that. But a one party state seems to be the only option when the opposition party rejects democracy.

Hear hear!

I recently wrote a post where I mentioned this very point:

That any democracy, for it to be healthy, i.e., for it not to have an one-party/ideology system, it MUST have a pendulum effect between at least two political Parties.

I am also a lifelong Conservative, but having the other side win for a change, keeps us all honest.

But that cannot happen, if that Party is so wrapped-up in its own uncontrolled rage towards the other side.

You'd think after 1972, after 1980, after 2000, after 2004, they'd learn their lessons, but no.

Still the other side doesn't get evolve -- you have to offer more than condenscenscion, and bitterness about your opposition. You have to offer positive IDEAS.

Progressives being so tetchy and hostile, as evidenced by Ann's post, just isn't good for America...

Thanks for that. That's a quote I'd consider putting in the banner. It's true. A lot of the time I was trying to explain the political problem that liberals have with being political about the courts. But they seem to prefer to have the problem. Ah, well, don't we all love our problems? They wouldn't be problems if we didn't love them!

Ann, in thinking about your spin on this event, I think you owe John an apology. He was very respectful of your ideas and said that he agreed with many of your points. He was not anti-Roberts and he did not argue that Alito should face a filibuster.

His view of what makes a good judge is fundamentally sound. A good judge needs to look at the facts and decide each case on the facts and not because of some ideological slant.

John is an excellent trial lawyer and knows how to fill the room with his voice. He was not angry, he was passionate.

John has spent his life donating his great legal skills to our community and supporting your law school. Why you would resort to petty comments like he was name dropping is beyond me. He was using real life experiences to illustrate the realities of being an appellate judge.

I like your blog and your enthusiasm. However, I think your perception is a bit off with respect to today's events. Part of your problem connecting with the crowd was simply not standing close enough to the mike.

Saul: He sounded angry to me. I would have like to see him focus on Alito, rather than rail about Richard Posner, Ed Meese, and the Dred Scott decision. His idea of what makes a good judge is someone who thinks about the facts and the "equities." Basically, he makes the argument for outcomes and having your heart in the right place. I think this is bad as a matter of law and a loser as a matter of politics. He didn't put kid gloves on to say these things, and there is no reason why I shouldn't state my opposition straightforwardly. The demand that I pull my punches to show respect for him as a respected eminence reminds me of the way he used arguments about personalitiies. Argue substance. Period. Everything else is drivel.

By the way, Saul, you said John was name-dropping too! Do you owe him an apology too?

"I don't think John was dropping names for the sake of dropping names. John does know everyone, and in the times I have spoken with him, I never have gotten that impression (especially since I have the habit of being a name dropper (got it from my mom))."

That's a quote from you! I certainly agree that he was using name-dropping as argument and not merely to express pride that he had been in the presence of various people. But I am rejecting that sort of argument. The fact that Judge Fairchild thinks such and such? Or that Meese said something once? You think that is persuasive?

Surprise, Surprise, Ann is fundamentally dishonest in her description of events. Her worst trait is that she pretends to be an independent thinker. Her second worst trait is that she thinks that people who don't know her shouldn't be mean to her even though her arguments are often flawed. We only know your writing and not the real you, Ann. The Ann that writes this blog is not worth knowing.

Ann, I'm just not into personal attacks, and I think that is what you have resorted to for whatever reason. You were a Boston fan in Yankee stadium. So what.

My "dropping name" response was to discount your assertion that he was name-dropping. He did refer to particular individuals to convey a story. He was relaying personal experiences which made his presentation very easy to follow, as well as interesting to listen to. The relevance of the Meese comment was that there may be more than meets the eye with Alito. But who knows. My father worked with Roberts and Alito, and my father has given both Roberts and Alito the thumbs up, so that is good enough for me. (My name-dropping mom can't stand either one.)

I shall refrain from criticizing your presentation, because it serves no useful purpose.

I see lots of people making the same argument you make about the Democrats, and I just don't get it. Sure, the nature of our electoral system pretty much precludes a wealth of smaller parties. But is anyone here personally acquainted someone who was a member of the Whig Party? The what????

The structure of our system does indeed tend to two parties, but I can't see the slightest thing that guarantees the Democrats must remain one of the two.

You forgot to mention that elliott is one of those profile not found fellers.

(can't even take the time to tell us his favorite films, books, or link to his website)

and does anyone else not like being the last poster on a thread?

(hmmmmm, to respond you'd have to help me out by posting after me, but by not responding you'd leave me in this state of discomfort. Which will win out, sympathy or sadism?(albeit very, very, very, very, very, very mild sadism))

oh, and Victoria, you forgot to say

Cheers!

(to think at one time I owned an autographed 12" of Banarama's Cheers Then)

Any advocate knows that storytelling is the key to presenting an argument.

The first two thirds of your presentation were dull. You told the audience a Headline News account of the Roberts nomination and the Harriet Meirs fiasco. I doubt you told anyone in the audience anything that they didn't already know.

Then, you spoke about Judge Alito. You said Judge Alito was a public servant who clearly is an experienced jurist. The court needs great judges, left, right or center. When the democrats have their day, they can appoint another liberal judge.

Ann you have good ideas, and are an excellent writer. You can be a great speaker also. However, ask people in the audience if they can hear you, because you have a quiet voice. Vary the loudness of your voice. And yes, it is helpful to personalize and tell stories. You are very well read and have interesting stories to tell. Tell them.

John's discussion was on what makes a good judge, and I think he articulated what qualities one should have to be a judge. He also discussed the significance of moving the court to the far right, and its impact on current precedent. Having defended civil rights throughout his career, John's perspective was what impact a far right court would have on civil rights.

You dismissed the impact that the change to the court might have. I agree that we won't see any drastic changes in the near term. However, if Stevens dies, or if Ruth Bader Ginsburg leaves the court, there may be more changes than you think. Maybe not. My father who has watched the Supreme Court from the DOJ since I was born 43 years ago, agrees with you 100 percent.

In rebuttal, you made your point about how liberals need a mantra like original intent. Original intent is about as substantive as a children's book. I think everyone agrees we should follow the constitution. However, does that mean the Second Amendment gives us only the right to bear muskets?

The founding fathers were slave owners. Jefferson graciously released his slaves after he died, not when he was alive. This country has never figured a way to get past race. Is affirmative action the solution? It may cause more problems than it solves. But it is a tool, and it has helped diversify the work force. Personally, I think it should end with education and small business loans, and not be part of workforce quotas or government contracts.

Both the left wing and right wing are fragmented and will probably continue to deteriorate. The reason that liberals have a tough time in national elections is not because they don't have a mantra for supreme court nominees. We live in a divided country, that still votes based on the race card, the patriotism card, the religion card.

What is destructive in our political discourse is the over- the-top spin used to distort what are the real differences in opinion. The Red states versus the Blue states are like rival high school football teams. This is not a sporting event. It is the future of our country.

We need intelligent people from all viewpoints to work together to get our country back on track. We don't need personal attacks on highly intelligent people who are defending the rights of those less privileged.

Sorry you had trouble hearing, Saul. I was on a microphone, so projecting my voice (as I do in the unmiked classrooms) would have been incorrect. If the technical people had the volume too low, that's a point against Café Monmartre. No one indicated they had trouble hearing, so, speaking into a mike, I had to assume the volume was set properly. That's how to use a mike!

I'm not sure what the point of your long comment is, really. Obviously, I've already said that I disagree with Skilton's conception of judging and I prefer to talk about substance. If you prefer to hear stories, avoid my talks.

Thanks, Crazy. Yes, the conservative judicial theory is threatening because it takes a position and commits to rules. O'Connor left things fluid, and when she is replaced by a real conservative, we should expect a dramatic power shift. I do understand what Saul and Skilton are exercised about.